Although the Constitution does not specially grant the judiciary the power of judicial review, the judicial power (Article III, Section 1) also constitutes a check on the Congress. The Judiciary corrected a “defect” of the Articles of Confederation, which had no judicial function. Hamilton states that judges “are to be the interpreters of the law,” and “the interpretation of the laws is the proper and peculiar province of the courts.” (Federalist, No. 78) Joseph Story (1833, Commentaries on the Constitution 2, Section 1568) explains the importance of an independent body to interpret the laws:
And every government must, in its essence, be unsafe and unfit for a free people, where such a department does not exist, with powers co-extensive with those of the legislative department. Where there is no judicial department to interpret, pronounce, and execute the law, to decide controversies, and to enforce rights, the government must either perish by its own imbecility, or the other departments of government must usurp powers, for the purpose of commanding obedience, to the destruction of liberty.
The power of judicial review was clearly established in Marbury v. Madison (1803) and serves as the primary means of checking legislative and executive actions.
The Constitution grants Congress significant power in defining the Judiciary as an institution and appointing judges, through the power to establish “inferior courts” and through the Senate’s advice and consent role in regard to presidential appointments. Congress began the process of establishing the federal court system with the Judiciary Act of 1789. The Congress has also created district courts, circuit courts of appeal, and numerous other federal courts. In addition, Congress has determined the location of the courts and the number of justices who serve on them, including the Supreme Court, which varied in size until Congress set the number at nine in 1869.
In addition, Congress may check judicial power through a variety of means: impeaching and removing judges from office (Article 1, Section 2, Clauses 5 and 6); making exceptions to the Court’s appellate jurisdiction (Article III, Section 2, Clause 2); and responding to Court opinions by passing laws that address the Court’s objections, or by proposing constitutional amendments (Article V). We will consider how Congress has exercised checks on the Court when we describe the balance of power between Congress and the judiciary.